A good blog post gives one a fair amount of homework, its links are interesting, the ideas are provoking and paradigm-breaking, and the material that it refers to is vast. That is what Chris Blattman did in this post. The message I took home is that we can teach institutional change using case studies, and that in terms of building the rule of law, Africa has also a lesson to teach.
The first part of my homweork is to learn more about the book Chris mentions in his post: BUILDING THE RULE OF LAW: FRANCIS NYALALI AND THE ROAD TO JUDICIAL INDEPENDENCE IN AFRICA:
Nyalali is "[A]n uncommonly interesting Supreme Court judge in Tanzania," who successfully promoted institutional change in that country.
The difficulty Nyalali faced is one that has confronted other judges in other regimes. What should a judge do when she finds herself presiding in a system that is itself unjust? Is it best to resign so as not to confer legitimacy on an illegitimate system? Or is it better to stay on, and to ameliorate the system's faults to the extent she can? Francis Nyalali faced this question, but he did not choose between leaving or staying. He chose instead a third path. He took his case to the political process. In their efforts to fight corruption, he argued, Tanzanian lawmakers were themselves being lawless. In a speech before the National Executive Committee of Tanzania's state party, Nyalali insisted that "no one however high or low is above the law" (p. 151). Although criticized by some as a "stooge of imperialism," Nyalali gained the support of President Julius Nyerere, and ultimately the legislature passed a resolution supporting the rule of law (pp. 150-51). Through this story Widner illuminates the role of judges as strategic political actors. And the focus of strategic politics in this story is the courts themselves. Nyalali acted politically to generate a constituency for judicial review.
Reform was not a matter of gradual evolution. Instead, Nyalali had to capitalize on moments when change could be accomplished. Sometimes there were "openings" when institution building was possible.
The crisis that created an opening for a politics in support of a rule of law, Widner argues, led to new support for individual rights.
As Justice Nyalali put it, "If the law is to have roots in the hearts and minds of the people of our own country, we must articulate it upon principles which have been tested or enunciated in our own history"
To inform his interpretation of the Bill of Rights and Duties with Tanzanian history, Nyalali turned to the writings of nationalists from the independence era. The values underlying the Tanzanian constitutional order were not new, Nyalali argued. "These principles and values were articulated on African soil by the great leaders of modern Africa" (p. 181). In turning to the past, Nyalali did not invoke the narrow conceptions of history that sometimes inform constitutional interpretation, such as the idea of the "intent of the framers." (7) Instead, Nyalali looked more broadly to Tanzanian political culture at the time the new nation, and its legal institutions, were created. The values that informed Tanzanian constitutionalism, he argued, "are the principles and values which underlay the African liberation struggle and gave birth to our nationhood" (p. 181). Moreover, the history of Tanzania, Nyalali argued, "is a history of the internalization of the principles and values of a world-wide liberation movement" (p. 183).
Widner helps us to see that courts are themselves sites for democratization. Courts themselves can enhance the development of a democratic political culture. In this sense, the judiciary is not only reflective of democracy, but constitutive of it.
Read the whole review here. The book can be a very valuable resource for promoters of the rule of law in developing and developed countries alike. It can be specially valuable to several countries in Latin America, that are going trhough a terrible institutional crisis.
I will do the sencond part of my homework in the next post.